Ethics Guidelines

American Academy of Psychiatry and the Law

Ethics Guidelines for the Practice of Forensic
Psychiatry

Adopted May, 2005

I. Preamble

The American Academy of Psychiatry and the Law (AAPL)
is dedicated to the highest standards of practice in
forensic psychiatry. Recognizing the unique aspects
of this practice, which is at the interface of the
professions of psychiatry and the law, the Academy
presents these guidelines for the ethical practice
of forensic psychiatry.

Commentary

Forensic Psychiatry is a subspecialty of
psychiatry in which scientific and clinical
expertise is applied in legal contexts involving
civil, criminal, correctional, regulatory or
legislative matters, and in specialized clinical
consultations in areas such as risk assessment or
employment. These guidelines apply to psychiatrists
practicing in a forensic role.These guidelines supplement the Annotations
Especially Applicable to Psychiatry of the American
Psychiatric Association to the Principles of Medical
Ethics of the American Medical Association.Forensic psychiatrists practice at the interface
of law and psychiatry, each of which has developed
its own institutions, policies, procedures, values,
and vocabulary. As a consequence, the practice of
forensic psychiatry entails inherent potentials for
complications, conflicts, misunderstandings and
abuses.Psychiatrists in a forensic role are called upon
to practice in a manner that balances competing
duties to the individual and to society. In doing
so, they should be bound by underlying ethical
principles of respect for persons, honesty, justice,
and social responsibility. However, when a treatment
relationship exists, such as in correctional
settings, the usual physician-patient duties apply.

II. Confidentiality

Respect for the individual's right of privacy and
the maintenance of confidentiality should be major
concerns when performing forensic evaluations.
Psychiatrists should maintain confidentiality to the
extent possible, given the legal context. Special
attention should be paid to the evaluee’s
understanding of medical confidentiality. A forensic
evaluation requires notice to the evaluee and to
collateral sources of reasonably anticipated
limitations on confidentiality. Information or
reports derived from a forensic evaluation are
subject to the rules of confidentiality that apply
to the particular evaluation, and any disclosure
should be restricted accordingly.

Commentary

The practice of forensic psychiatry often
presents significant problems regarding
confidentiality. Psychiatrists should be aware of
and alert to those issues of privacy and
confidentiality presented by the particular forensic
situation. Notice of reasonably anticipated
limitations to confidentiality should be given to
evaluees, third parties, and other appropriate
individuals. Psychiatrists should indicate for whom
they are conducting the examination and what they
will do with the information obtained. At the
beginning of a forensic evaluation, care should be
taken to explicitly inform the evaluee that the
psychiatrist is not the evaluee’s “doctor.”
Psychiatrists have a continuing obligation to be
sensitive to the fact that although a warning has
been given, the evaluee may develop the belief that
there is a treatment relationship. Psychiatrists
should take precautions to ensure that they do not
release confidential information to unauthorized
persons.When a patient is involved in parole, probation,
conditional release, or in other custodial or
mandatory settings, psychiatrists should be clear
about limitations on confidentiality in the
treatment relationship and ensure that these
limitations are communicated to the patient.
Psychiatrists should be familiar with the
institutional policies regarding confidentiality.
When no policy exists, psychiatrists should attempt
to clarify these matters with the institutional
authorities and develop working guidelines.

III. Consent

At the outset of a face-to-face evaluation,
notice should be given to the evaluee of the nature
and purpose of the evaluation and the limits of its
confidentiality. The informed consent of the person
undergoing the forensic evaluation should be
obtained when necessary and feasible. If the evaluee
is not competent to give consent, the evaluator
should follow the appropriate laws of the
jurisdiction.

Commentary

Informed consent is one of the core values of the
ethical practice of medicine and psychiatry. It
reflects respect for the person, a fundamental
principle in the practices of psychiatry and
forensic psychiatry.It is important to appreciate that in particular
situations, such as court-ordered evaluations for
competency to stand trial or involuntary commitment,
neither assent nor informed consent is required. In
such cases, psychiatrists should inform the evaluee
that if the evaluee refuses to participate in the
evaluation, this fact may be included in any report
or testimony. If the evaluee does not appear capable
of understanding the information provided regarding
the evaluation, this impression should also be
included in any report and, when feasible, in
testimony.Absent a court order, psychiatrists should not
perform forensic evaluations for the prosecution or
the government on persons who have not consulted
with legal counsel when such persons are: known to
be charged with criminal acts; under investigation
for criminal or quasi-criminal conduct; held in
government custody or detention; or being
interrogated for criminal or quasi-criminal conduct,
hostile acts against a government, or immigration
violations. Examinations related to rendering
medical care or treatment, such as evaluations for
civil commitment or risk assessments for management
or discharge planning, are not precluded by these
restrictions. As is true for any physician,
psychiatrists practicing in a forensic role should
not participate in torture.Consent to treatment in a jail or prison or in
other criminal justice settings is different from
consent for a forensic evaluation. Psychiatrists
providing treatment in such settings should be
familiar with the jurisdiction’s regulations
governing patients’ rights regarding treatment.

IV. Honesty and Striving for
Objectivity

When psychiatrists function as experts within the
legal process, they should adhere to the principle
of honesty and should strive for objectivity.
Although they may be retained by one party to a
civil or criminal matter, psychiatrists should
adhere to these principles when conducting
evaluations, applying clinical data to legal
criteria, and expressing opinions.

Commentary

The adversarial nature of most legal processes
presents special hazards for the practice of
forensic psychiatry. Being retained by one side in a
civil or criminal matter exposes psychiatrists to
the potential for unintended bias and the danger of
distortion of their opinion. It is the
responsibility of psychiatrists to minimize such
hazards by acting in an honest manner and striving
to reach an objective opinion.Psychiatrists practicing in a forensic role
enhance the honesty and objectivity of their work by
basing their forensic opinions, forensic reports and
forensic testimony on all available data. They
communicate the honesty of their work, efforts to
attain objectivity, and the soundness of their
clinical opinion, by distinguishing, to the extent
possible, between verified and unverified
information as well as among clinical "facts,"
"inferences," and "impressions."Psychiatrists should not distort their opinion in
the service of the retaining party. Honesty,
objectivity and the adequacy of the clinical
evaluation may be called into question when an
expert opinion is offered without a personal
examination. For certain evaluations (such as record
reviews for malpractice cases), a personal
examination is not required. In all other forensic
evaluations, if, after appropriate effort, it is not
feasible to conduct a personal examination, an
opinion may nonetheless be rendered on the basis of
other information. Under these circumstances, it is
the responsibility of psychiatrists to make earnest
efforts to ensure that their statements, opinions
and any reports or testimony based on those
opinions, clearly state that there was no personal
examination and note any resulting limitations to
their opinions.In custody cases, honesty and objectivity require
that all parties be interviewed, if possible, before
an opinion is rendered. When this is not possible,
or is not done for any reason, this should be
clearly indicated in the forensic psychiatrist's
report and testimony. If one parent has not been
interviewed, even after deliberate effort, it may be
inappropriate to comment on that parent's fitness as
a parent. Any comments on the fitness of a parent
who has not been interviewed should be qualified and
the data for the opinion clearly indicated.Contingency fees undermine honesty and efforts to
attain objectivity and should not be accepted.
Retainer fees, however, do not create the same
problems in regard to honesty and efforts to attain
objectivity and, therefore, may be accepted.Psychiatrists who take on a forensic role for
patients they are treating may adversely affect the
therapeutic relationship with them. Forensic
evaluations usually require interviewing
corroborative sources, exposing information to
public scrutiny, or subjecting evaluees and the
treatment itself to potentially damaging
cross-examination. The forensic evaluation and the
credibility of the practitioner may also be
undermined by conflicts inherent in the differing
clinical and forensic roles. Treating psychiatrists
should therefore generally avoid acting as an expert
witness for their patients or performing evaluations
of their patients for legal purposes.Treating psychiatrists appearing as “fact”
witnesses should be sensitive to the unnecessary
disclosure of private information or the possible
misinterpretation of testimony as “expert” opinion.
In situations when the dual role is required or
unavoidable (such as Workers’ Compensation,
disability evaluations, civil commitment, or
guardianship hearings), sensitivity to differences
between clinical and legal obligations remains
important.When requirements of geography or related
constraints dictate the conduct of a forensic
evaluation by the treating psychiatrist, the dual
role may also be unavoidable; otherwise, referral to
another evaluator is preferable.

V. Qualifications

Expertise in the practice of forensic psychiatry
should be claimed only in areas of actual knowledge,
skills, training, and experience.

Commentary

When providing expert opinion, reports, and
testimony, psychiatrists should present their
qualifications accurately and precisely. As a
correlate of the principle that expertise may be
appropriately claimed only in areas of actual
knowledge, skill, training and experience, there are
areas of special expertise, such as the evaluation
of children, persons of foreign cultures, or
prisoners, that may require special training or
expertise.

VI. Procedures for Handling
Complaints of Unethical Conduct

The American Academy of Psychiatry and the Law
does not adjudicate complaints that allege unethical
conduct by its members or nonmembers. If received,
such complaints will be returned to the complainant
for referral to the local district branch of the
American Psychiatric Association (APA), the state
licensing board, and/or the appropriate national
psychiatric organization of foreign members. If the
APA or the psychiatric association of another
country expels or suspends a member, AAPL will also
expel or suspend that member upon notification of
such action. AAPL will not necessarily follow the
APA or other organizations in other sanctions.

Commentary

General questions regarding ethical practice in
forensic psychiatry are welcomed by the Academy and
should be submitted to the Ethics Committee.The Committee may issue opinions on general or
hypothetical questions but will not issue opinions
on the ethical conduct of specific forensic
psychiatrists or about actual cases.The Academy, through its Ethics Committee, or in
any other way suitable, is available to the local or
national committees on ethics of the American
Psychiatric Association, to state licensing boards
or to ethics committees of psychiatric organizations
in other countries to aid them in their adjudication
of complaints of unethical conduct or the
development of guidelines of ethical conduct as they
relate to forensic psychiatric issues.

Ethics Questions and Answers

AAPL has developed a series of Ethics Questions
and Answers relating to specific circumstances of
forensic psychiatry practice.